[1] Whether there exists a benefit of a lawsuit filed by a third party after the completion of compulsory execution (negative)

[2] Whether there is a benefit in a lawsuit of a third party’s objection in a case where a sale procedure is completed and only a distribution procedure remains (affirmative)

[1] A lawsuit of demurrer by a third party is unlawful in cases where a third party, who has ownership or right to block transfer or transfer of the object of compulsory execution, raises an objection against compulsory execution that is practically being carried out by infringing on the ownership or right thereof, and seeks to exclude enforcement. Thus, in cases where a lawsuit of demurrer by a third party is filed after the completion of compulsory execution in question, or compulsory execution that existed at the time of filing a lawsuit by a third party is terminated during the proceeding of the lawsuit, there is no benefit of

[2] In a case where the sale procedure for an object is completed but the distribution procedure is not yet completed, if the successful bidder of the object of auction acquires the ownership effectively, the proceeds received by the execution officer from the auction procedure can claim the right against the object as the object of the object of auction, which is the object of the third party's objection. Therefore, even if the sale procedure is completed, as long as the distribution procedure is not completed, the third party's lawsuit is still a legal interest.

[1] Articles 226 and 509(1) of the Civil Procedure Act / [2] Articles 226 and 509(1) of the Civil Procedure Act

[1] Supreme Court Decision 96Da37176 delivered on November 22, 1996 (Gong1997Sang, 38)

Plaintiff (Attorney Seo-sung et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Choi Jae-ho, Counsel for the defendant-appellant)

Daegu High Court Decision 96Na2164 delivered on October 17, 1996

Supreme Court Decision 95Da54822 Delivered on March 12, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

A. According to the reasoning of the judgment below, the court below acknowledged the following facts: on November 10, 1994, the defendant was awarded a successful bid of KRW 45,834,60 on the goods of this case at the Daegu District Court 94Hun-Ga84 on November 10, 1994, and received them at the same time as the payment of the successful bid price; on the above successful bid price, the plaintiff made a demand for distribution as a general creditor against the non-party; on the ground that the defendant raised an objection against the plaintiff's demand for distribution, the above successful bid price was deposited at the above court 94Hun-Ga2441 on the 28th of the same month, and the above successful bid price was commenced with the above court 94Ma5375 on the above successful bid price and continued to be in progress, the court below held that the goods of this case had no interest in the lawsuit of this case at the same time due to the payment of the successful bid price and the compulsory execution procedure against the non-party is more unlawful.

B. A lawsuit of demurrer by a third party is a lawsuit seeking an objection against a compulsory execution that is practically underway by infringing on the ownership or the right of the third party against the object of compulsory execution, and thus, it is unlawful as there is no benefit of the lawsuit in case where a lawsuit by a third party is filed after the compulsory execution concerned is completed or compulsory execution that existed at the time of the lawsuit by a third party is pending during the lawsuit (see, e.g., Supreme Court Decisions 65Da615, Jul. 20, 196; 96Da37176, Nov. 22, 196).

However, according to the facts established by the court below after remanding the case, it is clear that the sale procedure for the object of this case has been completed but the distribution procedure has not yet been completed, and, on the other hand, where the successful bidder of the object of auction acquires ownership, the proceeds received by the execution officer from the auction procedure can claim the right to the object of auction, and therefore, even if the sale procedure has been completed, the lawsuit by the third party shall be brought against the third party as long as the distribution procedure has not been completed. Nevertheless, the court below's decision that the lawsuit by the third party of this case is unlawful as there is no interest in the lawsuit after remanding the case shall not be said to have been erroneous by misapprehending the legal principles as to the termination of compulsory execution and the interest in the lawsuit by the third party.

However, as seen below, the judgment of the court below is just after the plaintiff was remanded to the court below that waived his right as a mortgagee to the goods of this case. Since it is apparent in the record that the plaintiff has filed a lawsuit of objection against the third party in the position as a mortgagee to the goods of this case, it is clear that the plaintiff's lawsuit of objection against the third party in this case who renounced his right to collateral security to the goods of this case has no choice but to be dismissed even if the plaintiff's lawsuit of objection against the third party in this case is judged. Therefore, the grounds for appeal disputing this issue cannot be accepted in the case where only the plaintiff appealed against

2. On the second ground for appeal

Since the waiver of a right is a sole act without the other party and is issued at the same time as the declaration of intention, the court below recognized facts as stated in its holding, and it is just to determine that the plaintiff renounced the right as a mortgagee to the object of this case, and there is no error in the misapprehension of legal principles as to the waiver of a right. The grounds for appeal

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)